British Columbia and the Optional Nature of Health Care


 

Chopped Care CardSince my surprise on Friday I’ve spent a bit of time going over various materials.  One large project I’ve undertaken is to start reviewing all the relevant case law.  I’m doing this by researching the various decisions, including the Supreme Court of Canada (one decision), the Federal Court of Appeals (three decisions), and the Federal Court of Canada (100+).  This is a lot of material to review, so I’m not really ready to start covering it here, but I will be – if for no other reason than to provide those who follow with a bit of a starting point in analyzing the material.

I also looked through the copy of my “immigration file” and found an interesting piece of e-mail recorded within the computer notes.  To be honest, it probably should not have been included, because it looks to be privileged communications (attorney/client).  However, the ATIP folks review everything before they send it out, so someone reviewed it and decided it wasn’t sensitive.

The applicant identified above has filed a judicial review application challenging the refusal to grant him a PR status on the basis of his medical inadmissibility. He is challenging this finding suggesting that fairness was breached in that his case did not benefit from a personalized assessment as established by Hilewitz . Could you please look at the attachments and confirm that the documents he has now introduced in his application before the Court, were also provided in support of his application for PR .

Your comments are appreciated. Of particular interest is whether or not he presented evidence to demonstrate that he could opt of British Colombia‘s publicly funded Medical plan.

It was this last paragraph that caught my attention as I was reading through this, because indeed, we did not present this information to the visa officer – why would we?  Based upon the fairness letter, they asked about costs, not about BC’s coverage of those costs.  While my attorney wrote up the letter to CIC regarding my case, I’m the one that had picked him based upon my own reading of the Companioni decision – I essentially used this as a check list for a well-formed plan.

Had the original fairness letter stated “Alternative payment plans will not be considered because BC pays 100% of the cost…” I would not have wasted my time presenting a plan to provide 100% coverage of the costs.  instead, I would have argued “BC does allow an opt-out scheme”.  The government will argue that the judge should not consider this because it was not before the visa officer at the time of the decision.  However, it does underscore the fact the fairness letter itself was deficient because it did not clearly establish this concern of the officer.

At any rate, after thinking about it for a while i realize the government is in a trap of their own construction.  By noting that they are aware of BC’s policy for payment for this particular class of drugs, which is not described on the BC MSP website or the Fair PharmaCare website, it would suggest they are familiar with subtle nuances of the BC medical services plan.  Yet now they seem to be arguing that they don’t really know much about the provincial health program and it was my obligation to educate them about their own program.

How can you both be responsible for administering a program and simultaneously arguing you are not responsible for being knowledgeable about it?  That would seem to run counter to natural justice – CIC is only responsible for knowing those bits of policy that allows them to reject you, particularly if you are someone with a disability.

The original letter doesn’t mention British Columbia’s policies at all.  To pull this out at the end as part of the final rejection is indeed unfair because it never gave me an opportunity to respond.

It does seem to bolster the separation of powers argument as well.  It is not good policy to allow CIC to “cherry pick” which parts of provincial health policy they have to understand.  In Deol [2002 FCA 271] the court rejected the idea that CIC had to advise an applicant of a program that might have been beneficial to the applicant:

As for the visa officer’s alleged unfairness in not drawing Mr. Singh’s attention to Manitoba’s bonding program, Muldoon J. noted that visa applicants have the burden of establishing that they meet the qualifications for admission. Accordingly, the visa officer was not under a duty to advise Mr. Singh how he might overcome the “excessive demands” hurdle by drawing to his attention a program offered, not by Citizenship and Immigration Canada or any other federal agency, but by the Department of Health of the province of Manitoba. He also noted the paucity of evidence about the program, including its availability to Ms. Deol.

This does not say the visa officer was not under an obligation to understand the laws of the province, although it does imply this.  But it does help strengthen the separation of powers argument – if CIC isn’t required to understand provincial health care law, why are they making decisions based upon it?  How is this fair to the applicant?

I am feeling somewhat upbeat at this point.  It would seem that CIC does not have a good track record when it comes to medical inadmissibility cases.  I don’t have a complete number yet, but by the time I’m done I will.  Right now though it is clear that CIC loses more cases than they win in this area – the Federal Court often finds their decisions come up deficient.

I’m hoping to tip that count a bit more.

 

 

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Ovalle v MCI


Court Decision (Gavel)It’s been several weeks since I reviewed the recent court decisions.  I was glad to see a new one that is pertinent to my case: Ovalle v MCI (2012 FC 507).  It was argued by the same attorney that I am using and – interestingly enough – the government was represented by the same attorney as well.  At some point I suspect these two will feel like old friends (or perhaps rivals at least.)

At any rate, in this case, Mr. Ovalle applied for immigration, was HIV positive when he applied, was taking drugs provided to him by a non-profit known as Aid for AIDS International and they agreed to continue providing him with the drugs, even if he were to immigrate to Canada.  He also showed that he was stable and other than the meds, he would not be an excessive demand on the health services of Canada.

The medical officer reviewed the additional evidence and said that it did not change the diagnosis or prognosis.  The visa officer relied solely upon the feedback from the medical officer, discounted everything submitted by Mr. Ovalle, and rejected him.

The Court was not happy with this decision – this was reviewed strictly on the “fairness” of the actual decision (an admittedly challenging basis on which to win a decision):

While the officer had detailed information before him about the medication Mr. Ovalle would require, its cost, and his ability to meet that cost, the officer merely reiterated the medical officer’s opinion that Mr. Ovalle’s diagnosis and prognosis had not changed. But neither the prognosis nor the diagnosis was the issue. There was no dispute about that. The issue was whether Mr. Ovalle would impose an excessive demand on Canadian resources. The officer did not address that issue in his reasons. It is not possible, therefore, to understand the basis for his conclusion that Mr. Ovalle’s plan was not satisfactory.

(Paragraph 9).

As a result, the judge decided the decision was not reasonable.   Kudos to Justice O’Reilly in holding CIC accountable to the standards as set forth in Sapru v MCIas I previously discussed.

The decision in this case is a narrow one (e.g., it applies to the specifics of this case) but it does demonstrate that the Courts are not allowing the Minister to simply reject people without a reasonable explanation as to why they are being rejected.

My own case has now been pending a decision on my application (to see if we even get to have a hearing) for 27 days.  While there is no guarantee of any specific time frame, it is now longer than most decisions of this type based upon my review of other cases – I have seen as long as two months to make a decision (twice – once it was granted, once it was denied).

Only time will tell.

Is it Moot?


In the days leading up to the government’s response there was correspondence from the attorney representing the government advising us that because there was a spousal sponsored application in the mix she would file a “Motion to Strike” and correspondingly ask for an award of costs.

This led to some interesting conversations with my attorney – I had not told him what I was doing with respect to a spousal sponsored application for a couple of reasons: I’ve engaged his services to represent me in the judicial review action, not in a spousal undertaking for example; I’ve been told that the two are not related.

It is a bit frustrating to have a professional (such as a lawyer) treat me as if I were someone who did not understand the subject matter.  I’m not an expert but I’m also not stupid.  I was very careful in my communications with him not to lie, although I certainly did not disclose everything to him either.  Since that time he ask explicitly requested that I do so.  Thus, I’ve sent him a copy of the sponsored spousal application for his records as well as the letter I submitted to the visa office in February when I discovered they had not shown submitted documents in the CAIPS notes (including those materials).

So, with the record now clear, we’re still proceeding on the presumption that my ability to challenge the original finding in my FSW application is not abrogated simply because I might be allowed in under a separate immigration category.  According to the timing published this week Mississauga won’t even open the application until mid-May (75 days as of April 2, 2012).  Maybe we missed something, in which case I have to fix and resubmit the application.  Maybe they won’t allow my spouse to sponsor me (there ARE potential issues in our relationship that might lead to that conclusion).  Most likely, they will approve my sponsor and then forward the entire file to Buffalo.  Odds are it will then take a couple of months for Buffalo to even start processing my file.

However, the government did not file a Motion to Strike.  Instead, they filed a response. The government’s response entirely ignored the substantive points raised in the application.  They did not defend the medical officer’s decision, they did not challenge the separation of powers argument and they did not defend against the Charter challenge.  The argument boiled down to: the applicant is filing under the sponsored spousal family class in which medical inadmissibility is not an issue and thus this court should not hear this case. They did ask for a “small award for costs”.  They also challenged a couple of the items that were submitted because they were not available to the visa officer.  Some of this did not make any sense (like the medical officer’s decision in the previous case) since its presence in front of the visa officer or not seems irrelevant.  But that’s what they argued.

My attorney said that until I’m granted permanent residency in the new class, there is little if anything to support a claim that the issues I raised are moot.  In my conversations with him I said, pointedly, that if I’m granted review I will withdraw my application as a sponsored spouse pending outcome.

Certainly, part of my mental process back in January was that the likelihood of obtaining review was fairly low (20-25%).  At least by initiating the parallel application, if that were the actual outcome I’d be able to at least trim several months off the processing time required (although probably not in time to avoid renewing my work permit, the next challenge I have to face.)  Perhaps it was a bit of panic thinking at the time – the idea of being kicked out, pushed away from my job, my spouse, my dog, my apartment and my home of choice certainly was not a pleasant one.

However, the argument against the government’s position is that simply because there is another possible avenue to explore, there is no guarantee that I would be successful.  For example, I pointed out that if one followed this logic, the court could dismiss any medical inadmissibility case if the government argued they had not pursued an H&C application – even though such an application would most likely fail.  Otherwise, this becomes an argument of relative probabilities.  But my attorney did say that once granted permanent residency in the sponsored spousal class the court would dismiss my challenge in relation to my original federal skilled worker application.

I did point out (although he did not respond to my observation) that even if I’m granted permanent residency in a different class, I’m now bound by a sworn affidavit to eschew using the very provincial medical services in question and thus I could argue that I still have standing, even though I’ve been granted permanent residency because I’m still bound by my prior affidavit.  Thus, the government want’s to “have it’s cake and eat it too” – I’m morally bound by an agreement not to use these services, but the government need not be bound to defending their very right to ask me for said guarantee.

Unless the court buys this argument (that the matter is moot), which does not seem to have support in law, it looks like we will get judicial review.  While certainly not the goal, the spousal sponsored application may actually help us get a day in court – as I’ve said before, I’d still prefer to obtain permanent residency on my own.

One week from today my reply (drafted and filed by my attorney) to the government’s response is due.  Then 6-8 weeks later the court should make its decision on whether or not to grant review.  My attorney thinks it is likely now (and I’ve raised my own worthless estimate to 75%).

Application Reasons


Federal Court (Canada)

Federal Court (Canada) (Photo credit: Wikipedia)

As I noted previously, this is an “application for judicial review” – it tries to provide serious issues that justify a judge spending her or his time reviewing.  Something like 20% of “applications” are granted by the court and most are dismissed.  There are three steps to this process: the application, the response, and the request for hearing.  The first and third are written by the applicant and the second by the government’s attorney in most immigration cases.

The standard for review, as explained by CIC:

Review by the Federal Court is a two-stage process. In the first stage, which is known as the “leave” stage, the Court reviews the documents related to your case. You must show the Court that an error was made in the decision, or the decision was not fair or reasonable.

Of course, the Federal Court has the actual text including the rules and standards applied to this process (and it differed a bit from the explanation I’d been given up to this point.)

So what is critical at this juncture are the arguments.  If the initial arguments are not very strong then the court will probably just dismiss them. It is ultimately up to the discretion of the court and thus the job of the applicant is to frame questions that will pique the interest of the judge reviewing the initial record.

In my case, my attorney has chosen five arguments to present:

  • The medical officer made an error in law by failing to make an individualized assessment in deciding that I was medically inadmissible.
  • The medical officer violated her duty of procedural fairness by failing to provide me with a fair opportunity to respond to her concerns.
  • The medical officer failed to provide adequate reasons for her decision and this makes them unreasonable, particularly given that the same medical officer reached a different conclusion for a similar case with similar circumstances.
  • Section 38(1)(c) of the Immigration and Refugee Protection Act (IRPA) is constitutionally invalid because it represents a Federal intrusion into the Provincially controlled arena of health care.
  • Section 38(1)(c) of the IRPA is invalid because it violates section 15(1) of the Canadian Charter of Rights and Freedoms.

While the arguments presented to back up these claims stretch for more than a dozen pages, these are the key arguments.

The first three are, on their surface, sufficient to obtain judicial review.  Particularly the third argument. In a previous case (known to my attorney) the same medical officer concluded that the applicant had failed to mitigate their excess demand circumstances by failing to show insurance to cover their needs.  In my case, the medical officer states that insurance was immaterial.

While my attorney did not state it, my take-away from this was “we’re going to reject these people, and we’re going to make up arbitrary reasons why as needed, even when they are contradictory.”

The first three arguments are likely sufficient to obtain review – they do seem to raise serious questions of procedural fairness.  However, a finding in my favour is merely going to refer the case back to CIC for further decision making.

The last two arguments are the more interesting ones.  If either of these is adopted by the court, the entire basis for the rejection is discarded.  While my case would be remanded back to CIC, there would not be anything further required for them to do for my original application.  They would likely ask me for updated medicals and police clearance, but beyond that there wouldn’t be much of anything to decide.  That would (from my perspective) be the ideal decision.

I’m writing this a week before the Respondent’s arguments are due.  I’m going to schedule it for publication AFTER they are due, simply because I don’t want to post anything that might compromise the case.

Immigration: Anyone with a condition will be a drain


Down's SyndromeOne of the fundamental underpinnings of the concept of “inadmissibility due to excessive demand” is the idea that people who are different are also liabilities to Canadian society.  This is reflected in the very process – in which only costs are considered, not added value, for example – and represents a deep-seated bias.  Even more peculiar is the idea that in some cases this excessive demand can be waived – for example, in the sponsored spousal class.

Of course, I’m dealing with this in my own case, as it is at the heart of the medical inadmissibility decision process: let’s look at costs above all else.  I must admit, I do understand the need to try and balance contributions against expenditures, but the law in this area is crazy – CIC turns it into an adversarial process, in which they say “sorry, but you might cost us too much money” and then makes you go figure out HOW they reached that decision (they certainly don’t tell you) and come up with some argument they might find persuasive.  If you guess wrong, you lose and you are rejected.

For example, in my case I’ve struggled to find out how much they think the meds are going to cost.  Not even the clinic in Vancouver can tell me the actual cost of these meds (and I’ve asked.)  I know what I can pay to buy them in the open market.  I’ve even gone so far as to research patent expiration dates to find drugs that are NOT covered by Canadian patents any longer and thus should be about the same cost as the generics I can find priced on the internet.  There are treatment options at around $2,000 per year.  But because I cannot find out the costs the government pays, I can’t even argue that their assessment is wrong – all I can do is say “ok, I have enough insurance to pay 100% of the cost” to which they reply “we know you’re just saying that and as soon as you can you’re going to jump on the gravy train…”  Nothing quite as inspirational as a process that automatically assumes you are a liar.  Of course, I’m not and I signed an unconditional affidavit saying I would pay the costs of the medications should they be necessary.  So I consider that no matter what the outcome, I am bound by that oath.

At any rate, last night I read this interesting article on the refusal of a parental sponsored application because they have an adult daughter with Down’s Syndrome. It’s what triggered this thought process for me.  There is an inherent bias in the system against people who are different.

This is an important part of our argument that this is a Charter violation – and this case is an excellent example of exactly the kind of bias we’re suggesting is the issue.

Healthcare in Canada: Who is responsible?


Political Map of Canada

As I previously noted, my application for judicial review before the Federal Court of Canada argues that the Federal Government does not have the legal right to make excessive demand decisions, because it involved an exclusively provincial domain (namely, health care.)

While researching this issue I found the following description of the history of health care in Canada on Wikipedia:

The federal government felt that the health of the population fell under the Peace, Order, and Good Government part of its responsibilities. This led to several decades of debate over jurisdiction that were not resolved until the 1930s. Eventually the Judicial Committee of the Privy Council JCPC decided that the administration and delivery of health care was a provincial concern, but that the federal government also had the responsibility of protecting the health and well-being of the population.

What I find interesting is that when I look back at one of the seminal cases (Deol v Canada) the court specifically said that CIC had no obligation to advise the applicant of a provincial bonding program.  If the Federal government is representing the interests of the province in making immigration oriented health care decisions who is responsible for advising the applicant of such a program? In other words, if CIC is the agent of the province in this case, how can they abrogate a reasonable obligation to advise the applicant of their option under the very laws and regulations they are purportedly representing?

Here is the text from the judicial review application, as filed:

Issue four: s. 38(1)(c) violates the constitutional division of powers

1. Section 38(1)(c) of the Act authorizes the federal Minister of Citizenship and Immigration to make determinations involving costs of administering provincial health plans. Therefore, this section is invalid because it intrudes upon provincial health jurisdiction and jurisdiction in local matters under ss. 92(7), (13) and (16) of the Constitution Act. 1867.

2 . S. 91(25) of the Canadian Constitution Act authorizes the federal government to regulate naturalization and aliens.

Constitution Act, 1867, s. 91(25)

3. S. 92(7), (13) and (16) of the Constitution Act. 1867 provide provinces with the authority to regulate health care and jurisdiction over local matters.

Constitution Act, 1867, s. 92(7), (13) and (16)

4. S. 38(1)(c) of the Act, in pith and substance, involves the federal government in
regulating the cost of provincial health care. As such, it is ultra vires the federal
government.

5. Regardless of whether the Immigration and Refugee Protection Act as a whole is valid immigration legislation, it may contain provisions which are neither valid immigration provisions, nor ancillary to immigration provisions. An invalid legislative provision is not rendered valid because it is included in a legislative scheme that, viewed globally, is valid. The proper approach is to rigorously scrutinize what each provision says and does.

6. S. 38(1)(c) of the Act, in pith and substance, involves the federal government in regulating the cost of provincial health care. As such, it is ultra vires the federal government.

7. Regardless of whether the Immigration and Refugee Protection Act as a whole is valid immigration legislation, it may contain provisions which are neither valid immigration  provisions, nor ancillary to immigration provisions. An invalid legislative provision is not rendered valid because it is included in a legislative scheme that, viewed globally, is valid. The proper approach is to rigorously scrutinize what each provision says and does.

Quebec (Procureur General) v. Canada (Procuruer General) 2010 SCC 61 at para. 78,87

8. The purpose or ” matter” of s. 38(1)(c) has been acknowledged to be “to reduce the impact on Canada’s publicly funded health and social services from excessive demand”. Unlike s. 38(1)(a) and (b), which are concerned with protecting the health of Canadians from newcomers who could pose a threat, s. 38(1)(c) in pith and substance is designed to manage and contain the cost of provincial health programs. This is not a valid immigration law purpose. This is a provincial concern.

Regulatory Impact Analysis Statement, Canada Gazette Part I, Part IV, p. 4497

9. The Supreme Court has determined that s. 92 provides provinces with jurisdiction over the costs of health care. The Court stated:

“In addition, there is no dispute that the heads of s. 92 invoked by the appellant confer on the provinces jurisdiction over health care in the province generally, including matters of cost and efficiency, the nature of
the health care delivery systems, and the privatization of the provision of medical services.”  [Emphasis added]

R. v. Morgantaler [1993] 3 S.C.R. 463 78,87

10. Recently, the Supreme Court described the provincial health power as “broad and
extensive”.

PHS Community Services Society v. Canada (Attorney General) 2011 SCC 44 at
para. 68

11. Deciding which newcomers are too costly for provincial health programs IS a provincial concern because it is a local matter requiring expertise regarding local conditions. For example, such an assessment requires detailed knowledge regarding how the health care system in a specific province is administered. Provincial authorities rather than federal bureaucrats are best placed to make such determinations.

12. Deciding which newcomers are too costly for provinces is also a local concern because it requires a balancing of the cost of the particular newcomer’s contributions with their expected costs.

13. In the Applicant’s case, for example, it is more appropriate for British Columbia to determine whether the Applicant is too great a cost for the province, taking into consideration that he resides there contributing to the local economy, consuming local goods and services. and paying taxes to British Columbia. A system which allows a federal medical officer in Ottawa to make such determinations on behalf of the province intrudes into provincial jurisdiction over local matters.

The Application


Last night I received a copy of the actual application that my attorney filed with the court.  It’s 259 pages of material, some of which I’d never seen before – like the original notes from the medical officer‘s file.  I thought it was interesting what was omitted from the file (some of the documents that were filed with the case) so I’m not sure what the rationale was for including or excluding specific information.  Be that as it may, the application record contains the bulk of information that was provided to CIC as well as information received from CIC.

Of particular interest to me were the legal arguments (19 pages), as ultimately it is the persuasive value of those arguments that will determine if the court agrees to hear the case (“grant’s the application for judicial review“).  The legal arguments for review consist of five different points:

  • The medical officer did not make an individualized assessment
  • The medical officer violated the duty of procedural fairness by not allowing me a fair opportunity to respond to the medical officer’s concerns
  • The medical officer’s reasons for her decision are inadequate.  In my case the medical officer reached a conclusion that is opposite of the conclusion reached in a different case with similar circumstances
  • The medical inadmissibility clause of the law is invalid because health care is legally the jurisdiction of the provinces
  • The medical inadmissibility clause violates Section 15(1) of the Charter of Rights and Freedoms

After reading the basic rationale, I would assume the lawyer assigned to this case for the Respondent will have some work to do.  The fourth argument is novel and has not previously been considered by the court, although there is plenty of case law pertaining to the separation of powers in the arena of health care.  The fifth argument is one that remains unsettled in Canadian jurisprudence.

My initial sense after reading this was that the first three arguments really do merit review.  The facts backing this up are interesting – the same medical officer decided that insurance was of paramount importance in the original Companioni decision, yet in my case decided that insurance was immaterial in my case.  Following the medical officer’s logic, no one in my situation would be medically admissible for immigration to BC.  That would seem to make things easy for CIC – blanket rejection.  Yet the point of the Hilewitz decision was to reject such a “cookie cutter” approach.  The inconsistency of the medical officer’s opinions does seem to be troubling (same medical officer, similar circumstances, completely different and contradictory rationale.)

It is, however, the last two arguments that are the more intriguing.  The separation of power’s argument has a reasonable counter-response: to cite to the British Columbia/Federal agreement allowing the Federal government to make medical decision on behalf of British Columbia with respect to immigration. (See canada bc immigration agreement for a copy of the 2010 agreement.)  It is a bit vague, but it is reasonable to argue that this grants the Federal government the authority to make decisions on British Columbia’s behalf.  There is a trap here however: first, the agreement requires that BC and CIC have drafted mutually agreed upon standards – and I haven’t been able to find them yet.  Second, and perhaps more dangerous, it would make the Federal government liable under British Columbia human rights legislation.  The idea here is that a government cannot abrogate it’s legal obligations by contracting with someone else to discharge its duties.  In theory then, it should be possible for me to bring a provincial human rights complaint (denying access to services based upon disability) against the Federal government.  If they then argue that they are immune from such, it would seem to create a very untenable position – they claim to have the right to exercise provincial authority in one context, yet deny the obligation to abide by provincial law in another context – both involving the same case?

The Charter argument has had plenty of time to ripen – it does not appear to have been argued in recent memory and there’s been quite a bit of development in the intervening years.  The arguments the attorney put forward are actually well-developed.

I was actually a bit concerned when I finished reading the legal arguments: they seem to be sufficiently interesting that I now rate the likelihood of judicial review happening at about 40% – there’s enough here to pique the curiosity of a judge.  My thinking is that if you’re given a stack of applications to review, most of which are refugee applications, and then you find one that appears to have some interesting potential arguments, you’d be inclined to grant the application.  At least that’s my hope.

Then there’s the scary side of this: suppose one of those last two arguments is successful and the court agrees that Section 38(1)(c) of IRPA is unlawful and must be struck down.  There is no way that the government will not challenge this, which means that it will take 2-3 years to resolve (and I’m betting that the cost of supporting an appeal in this regard will cost $30-50k.)

If judicial review is granted, particularly with these arguments presented, I worry about being successful – it basically would mean that a complete decision, with my name attached to it, would be splattered all over the legal history books.  I realize that’s a long shot.  It seems far more likely that a judge would decide on narrow grounds (e.g., “medical officer erred in her analysis”) than on broad grounds (“Section 38(1)(c) of IRPA violates the Canadian Constitution and/or Charter of Rights and Freedoms”). But to deny review, the judge must dismiss all of these concerns.  Under review, they can all be addressed (or some can be ignored.)

A positive decision on narrow grounds would simply return the file to CIC for further consideration.  In that case, with two applications in process, I’ll gladly take the one that comes first.  A negative decision on this application won’t affect the application in process.

A positive decision on broad grounds would be interesting – it would remand the decision to CIC after having invalidated this section of IRPA.  Thus, it would seem that the visa office would have to issue the PR visa (and in fairly short order, since all other criteria were satisfied.)  As I have mentioned before, there is a certain level of notoriety with a successful decision.  I’d have to expect an affirmative decision in this case on broad grounds would be exactly that sort of notorious decision.

Over the next few weeks I’ll see what I can do to capture more information about some of the arguments presented and the rationale used.

March 30: Respondent’s deadline.  I expect them to respond and disagree with our position.  I give a small chance to them assenting to the first points and disagreeing with the latter few points.  If they do the latter, it would be tactical – assenting on the first few points could lead to a decision in which the judge remands the case back to CIC based just upon the written pleadings (and thus side-stepping the Constitutional and Charter arguments.)  I’m not familiar enough with Canadian Jurisprudence to know if this is even a reasonable possibility.